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Criminal Practice – Jury Instructions – Identity – No Plain Error – Lesser Included Offense – ‘Aggravated Common Law Robbery’

State v. Harris (Lawyers Weekly No. 12-07-0887, 14 pp.) (Wanda G. Bryant, J.) Appealed from Halifax County Superior Court (Alma L. Hinton, J.) N.C. App. Full-text opinion.

Holding: Where the jury instructions reiterated multiple times that the state must prove that defendant was the perpetrator of each of the crimes, the jury instructions substantively included an instruction regarding identity. Defendants cannot show that the trial court’s failure to give a separate instruction on identity beyond that included in the armed robbery instruction caused the jury to reach a verdict convicting defendants that it probably would not have reached had a separate instruction been given.

We find no plain error in defendants’ convictions of robbery with a dangerous weapon and felonious conspiracy to commit robbery with a dangerous weapon.

Notwithstanding defendants’ request that we review a potential sentencing factor – aggravated common law robbery – as a substantive offense, we decline that invitation. Where, as here, the evidence fully supports armed robbery and no lesser included offense, there could be no plain error in failing to submit a lesser included offense. Further, there is no such offense as “aggravated common law robbery” in North Carolina.

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